50 Ga. App. 87 | Ga. Ct. App. | 1934
This is an action on a policy of insurance, the plaintiff being the holder of a certificate issued by reason of a master policy issued by the defendant to the employer of the plaintiff. The plaintiff claimed a total disability arising because of
We think the court was correct in so ruling. We recognize the rule adopted in this State that a motion for nonsuit should not be granted when there is any evidence tending to sustain the plaintiff’s action, or where the jury could fairly infer from the evidence a state of facts favorable to the plaintiff’s right of recovery. This rule is so well established as to need no citation of authorities. However, it is also well established that “the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, or-equivocal. And unless there be other evidence tending to establish his right to recover, he is not entitled to a finding in his favor, if that version of his testimony the most unfavorable to him shows that the verdict should be against him.” Long Cigar &c. Co. v. Harvey, 33 Ga. App. 236 (125 S. E. 870). See also American Nat. Ins. Co. v. Gantt, 46 Ga. App. 744 (169 S. E. 133). The testimony of the plaintiff is that he has been engaged in gainful occupations at tasks requiring hard physical labor since his employment with the company to which the defendant issued the master policy. His physician’s evidence was that if he actually did the work he testified that he performed, he would not be totally disabled from bodily disease. His evidence was further to the effect that the disease suffered by the plaintiff was curable and that the plaintiff had responded to treatment. There is a total lack of evidence that it was even probable that he would suffer and be wholly, continuously, and permanently disabled for life from engaging in any occupation or employment for wage or profit,, but there was evidence to the contrary. We think the ruling of the trial judge in granting a nonsuit was correct.
Under this view of the case it becomes unnecessary to discuss the various other assignments of error in the main bill or in the cross-bill of exceptions.
Judgment affirmed on main bill of exceptions; cross-bill dismissed.